Thank you for your recent request. Your request is being considered and
you will receive a response within the statutory timescale of 20 working
days, subject to the application of any exemptions. Where consideration is
being given to exemptions the 20 working day timescale may be extended to
a period considered reasonable depending on the nature and circumstances
of your request. In such cases you will be notified and, where possible, a
revised time-scale will be indicated. In all cases we shall attempt to
deal with your request at the earliest opportunity.

There may be a fee payable for the retrieval, collation and provision of
the information requested where the request exceeds the statutory limit or
where disbursements exceed £10. In such cases you will be informed in
writing and your request will be suspended until we receive payment from
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further information where we believe that the request is not significantly
clear for us to respond fully.

Section 43 states:
(1) Information is exempt information if it constitutes a trade secret.
(2) Information is exempt information if its disclosure under this Act
would, or would be likely to, prejudice the commercial interests of any
person (including the public authority holding it).
(3) The duty to confirm or deny does not arise if, or to the extent that,
compliance with section 1(1)(a) would, or would be likely to, prejudice
the exemptions mentioned in subsection (2).

This acts as an exemption notice. We have applied this exemption as
Section 43 (2) because the information relates to intellectual property
i.e. trade secrets and/or commercially sensitive information. We confirm
that the information is held.

This is a qualified exemption and requires the consideration of a public
interest test. In this case we have considered that the public interest
favours non-disclosure. It is important to remember that when information
is released under the Freedom of Information Act 2000, it is considered
released to the wider public. The commercially sensitive information which
your request relates to, if released to the general public could
jeopardise the commercial interests of the Council and third parties by
providing an unfair advantage in any current or future commercial
negotiations.

iv) The amount left in the overall budget as of the end of June 2013.

The Council does not hold this information in the form requested. As
future anticipated staffing costs from currently unfilled posts will be
counted against this budget, it is not possible to provide a definite
figure on the remaining budget.

We hope you find this information useful.

You have a right of appeal against this response. If you wish to appeal
you must do so in writing to the Corporate Information Manager at the
following address:
Corporate Information Team
London Borough of Lewisham
1A Eros House
Brownhill Road
London, SE6 2EG
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I note your claim that the information requested is either a ‘trade secret’ or likely to cause commercial prejudice if disclosed.

Firstly, the term ‘trade secret’ is not defined in the FOIA but it is highly unlikely to cover the type of information I have requested. Please refer to the ICO’s guidance http://www.ico.org.uk/upload/documents/l... at pp. 3-4

Secondly, you have not described how the information requested prejudices commercial interests. You have not established that commercial interests are engaged. Further, in legal terms, the word ‘prejudice’ is commonly understood to mean harm. To say that disclosure would or would be likely to prejudice the interests specified in the exemption implies that it would (or would be likely to) harm those interests. You have failed to establish this.

The ICO’s approach to the prejudice test is based on that adopted by the Information Tribunal in Christopher Martin Hogan and Oxford City Council v the Information Commissioner(EA/2005/0026 and 0030, 17 October 2006) at paragraphs 28-34. This involves the following steps:

•Identify the “applicable interests” within the relevant exemption

•Identify the “nature of the prejudice”. This means: show that the prejudice claimed is “real, actual or of substance”; show that there is a “causal link” between the disclosure and the prejudice claimed.

•Decide on the “likelihood of the occurrence of prejudice”.

An authority must be able to show how the disclosure of the specific information requested would or would be likely to lead to this prejudice. I do not believe you have done this. There must be more than a mere assertion or belief that disclosure would lead to prejudice. There must be a logical connection between the disclosure and the prejudice in order to engage the exemption. See for example, Colin P England v London Borough of Bexley and the Information Commissioner (EA/2006/0060 and 0066, 10 May 2007)

Thus, on the basis of ICO judgments, the term ‘would be likely’ to lead to prejudice means that there must be more than a hypothetical or remote possibility of prejudice occurring; there must be a real and significant risk of prejudice, even though the probability of prejudice occurring is less than 50%.
For an authority to claim this, they would need to establish that:

(a) there is a plausible causal link between the disclosure of the information in question and the argued prejudice; and

(b) there is a real possibility that the circumstances giving rise to prejudice would occur, ie the causal link must not be purely hypothetical; and

(c ) the opportunity for prejudice to arise is not so limited that the chance of prejudice is in fact remote.
I do not believe you have established any of the above criteria are met in this case.

Further, even if you feel they are, it is then necessary to consider the public interest test. The public interest is served by disclosure in this case as access to the information would;

• further the understanding of, and participation in the debate of issues of the day;

• facilitate the accountability and transparency of public authorities for decisions taken by them;

• facilitate accountability and transparency in the spending of public money;

• allow individuals to understand decisions made by public authorities affecting their lives and, in some cases, assist individuals in challenging those decisions;

The case of Mersey Tunnel Users’ Association v Information Commissioner and Mersey travel (EA/2007/0052, 15 February 2008) demonstrates how clearly and carefully the public interest must be applied. There is no evidence of such careful consideration in this case.

Other LAs have been content to disclose this information so it is difficult to see your refusal as justified in light of the failure to apply the tests in the FOIA in the way required by the ICO.

I would ask that this matter be subject to an internal review.
Regards